Letts, R (on the application of) v The Lord Chancellor & Ors

The Article 2 investigative duty is not confined to cases involving evidence of an arguable substantive breach. In recognised categories, including some deaths in custody and suicides of psychiatric patients, it may arise from the circumstances of the death and the State’s care or control. Legal-aid guidance must identify that possibility and must not treat arguable breach as a universal threshold. The precise boundaries need not be exhaustively defined. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, guidance may be challenged where, if followed, it would lead to, permit or encourage unlawful decisions. A descriptive reference to “most” inquests was not unlawful on the evidence.

This was a first-instance judicial review of the Lord Chancellor’s Exceptional Funding Guidance (Inquests). The claimant, the sister of Christopher Letts, challenged the refusal of legal aid for family representation at the inquest into his suicide after psychiatric treatment. The individual claim was subsequently conceded and legal aid was granted, but the challenge to the Guidance continued because of its wider public importance.

The claimant argued that the Guidance wrongly required caseworkers first to identify an arguable breach of the State’s substantive Article 2 duties in every case. It failed, she argued, to recognise categories in which the investigative duty arose automatically, including some suicides of psychiatric patients. The court confined the proceedings to the legality of the Guidance in that context. It did not determine whether the State had actually breached Article 2 or the precise outer limits of the automatic duty.

1. Outcome. The judicial review succeeded to the extent that the Guidance was materially erroneous and misleading. The court declined to quash it and reserved submissions on whether declaratory relief should be granted.
2. Article 2 purpose and participation. The investigative duty serves purposes beyond attributing blame. It may bring facts to light, expose culpable conduct, allay unjustified suspicion, correct dangerous practices and promote lessons for the future. The next-of-kin’s legitimate interests therefore include discovering the truth, securing exculpation and preventing recurrence. Their involvement is an integral part of the Article 2 duty and may require legal aid in a proper case. The court relied on R (Middleton) v West Somerset Coroner [2004] UKHL 10, R (Amin) v Home Secretary [2003] UKHL 51, R(L(a patient)) v Secretary of State for Justice [2008] UKHL 68 and Edwards v United Kingdom (2002) 35 EHRR 487.
3. Automatic categories. The procedural duty may arise without evidence of an arguable breach of the substantive duties. In cases involving State custody, detention or comparable care and control, the fact and circumstances of the death may themselves create the relevant possibility of State responsibility. R(Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 and R(L(a patient)) v Secretary of State for Justice [2008] UKHL 68 supported that conclusion.
4. Psychiatric patients. The suicide of a voluntary psychiatric patient is capable, depending on the facts, of triggering the investigative duty. The relevant inquiry concerns whether the patient was, or remained, under State care or control. R(Rabone) v Pennine Care NHS Foundation Trust [2012] UKSC 2 concerned the operational duty rather than the investigative duty, but its reasoning supported this analogy. The precise outer limits were left open.
5. Guidance. By directing caseworkers to decide in every case whether there was an arguable substantive breach before considering the need for representation, the Guidance wrongly conflated the trigger for investigation with State culpability. It was sufficient to identify the existence of automatic categories and indicate that arguability might still be relevant where appropriate; exhaustive definitions were unnecessary.
6. Review of guidance. Applying the principle in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7, as summarised in R (Tabbakh) v The Staffordshire and West Midlands Probation Trust et ors [2014] EWCA Civ 827, the court asked whether the Guidance would lead to, permit or encourage unlawful acts or decisions. It would do all three. The challenge to the descriptive word “most” in paragraph 19 failed because there was no evidence that it was materially wrong and likely to distort case-by-case decision-making.

The matter was a first-instance judicial review. The judgment records that the individual legal-aid issue was conceded and that permission to challenge the Guidance was granted by Andrews J on 2 October 2014. The present court determined the remaining public-law challenge.